The Prehistory of Fair Use

Brooklyn Law Review
Volume 76 | Issue 4 Article 3
2011
The Prehistory of Fair Use

Matthew Sag
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Recommended Citation
Matthew Sag, The Prehistory of Fair Use, 76 Brook. L. Rev. (2011).
Available at: https://brooklynworks.brooklaw.edu/blr/vol76/iss4/3
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The Prehistory of Fair Use *
Matthew Sag†
INTRODUCTION
The fair use doctrine is a central part of modern

copyright law: academics, critics, journalists, teachers, film
makers, fan-fiction writers, and technology companies all rely
on the fair use doctrine to give them a certain amount of
freedom in dealing with other people’s copyrights. The fair use
doctrine recognizes that very few works are created without
some recognizable borrowing from antecedent works. Fair use
allows copyrighted material to be used without permission; in
so doing, it sets limits on the otherwise expansive rights of
copyright owners to control the reproduction and performance
of their works.1 As part of copyright law’s overall balance
between authorial incentives and public freedom, the fair use
doctrine “permits and requires courts to avoid rigid application
of the copyright statute, when, on occasion, it would stifle the
very creativity that law is designed to foster.”2 For all its
acknowledged importance, however, the fair use doctrine is
difficult—some say impossible—to define.3 This article proposes
that a full understanding of fair use cannot be achieved
without appreciating both its origins in English copyright law
and its development as a legal transplant in the United States.
Two recent cases illustrate the salience and difficulty of
fair use. In 2005, Google, Inc. began its massive unauthorized
digitization of library books to create an unashamedly
*
© 2011 Matthew Sag. All rights reserved.
†
Associate Professor, Loyola University Chicago School of Law. Thanks to
Oren Bracha, Chris Buccafusco, Andrew Gold, H. Tomás Gómez-Arostegui, Justine
Hughes, Tonja Jacobi, Pamela Samuelson, Josh Sarnoff, Stephen Siegel, and Rebecca
Tushnet for their comments and suggestions. Thanks to Joshua McIntyre and Michael
Schiffer for their assistance with research.
1
Technically, the fair use doctrine renders certain otherwise infringing
actions relating to copyrighted works noninfringing. 17 U.S.C. § 107 (2006) (“[T]he fair
use of a copyrighted work . . . is not an infringement of copyright.”).
2
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (2005) (internal
quotation omitted).
3
Paul Goldstein, Fair Use in Context, 31 COLUM. J.L. & ARTS 433 (2008).
1371
1372 BROOKLYN LAW REVIEW [Vol. 76:4
commercial book-search engine, Google Books.4 In response to

criticism and litigation from copyright owners, Google argued
that its conduct was protected by the fair use doctrine.5 In
2007, famed children’s book author J.K. Rowling sued to
prevent the publication of The Harry Potter Lexicon, an
encyclopedia of fictional facts and observations distilled from
the seven-volume Harry Potter series.6 The Google Books and
Harry Potter cases both raise basic questions about the extent
and duration of copyright-owner control. These questions are
fundamentally ones of public policy: What is a fair return for
authors? And when does control over subsequent use harm
creativity, technological progress, or freedom of expression?
Copyright owners and defendants alike make claims
about the history and essential nature of copyright and of fair
use. The plaintiffs in the Google Books litigation argued that a
hundred-million-dollar commercial enterprise has never been
justified—and can never be justified—by a narrow exception
like fair use.7 The defendants in the Harry Potter Lexicon case
argued that copyright ownership does not convey—and has
never conveyed—unlimited rights of control.8
Claims and inferences about copyright history often play
a significant role in modern debates about copyright law.9
Unfortunately, historical discussion of the fair use doctrine in
the United States tends to proceed from the wrong baseline.
Specifically, it falls short by over 100 years—treating the first
American fair use case, Folsom v. Marsh10 (1841), as the
4
Author’s Guild v. Google, Inc., Civil Action No. 05-CV-8136-JES (S.D.N.Y.
filed Sept. 20, 2005) (class-action suit); McGraw-Hill, Inc. v. Google, Inc., Civil Action
No. 05-CV-8881-JES (S.D.N.Y. filed June 9, 2006) (a suit on behalf of the Association of
American University Publishers, the McGraw-Hill Companies, Pearson Education,
Penguin Group (USA), Simon & Schuster, and John Wiley & Sons). The dispute looks
set to continue. See Author’s Guild v. Google, Inc., No. 05 Civ. 8136(DC), 2011 WL
986049 (S.D.N.Y. Mar. 22, 2011) (rejecting proposed class-action settlement).
5
Answer and Affirmative Defenses of Defendant Google, Inc. to the First
Amended Complaint, Authors Guild v. Google, Inc., 2005 U.S. Dist. Ct. Pleadings
8136A, at 9 (S.D.N.Y. July 26, 2006); see also Matthew Sag, The Google Book
Settlement and the Fair Use Counterfactual, 55 N.Y.L. SCH. L. REV. 19 (2010).
6
Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008).
7
See Tresa Baldas, Copyright Law Put to Test in Google Case, NAT’L L.J.,
Oct. 3, 2005, available at http://www.law.com/jsp/article.jsp?id=1128416712706.
8
Defendant RDR Books’ Memorandum of Law in Opposition to Plaintiffs’
Motion for a Preliminary Injunction, Warner Bros. Entm’t v. RDR Books, No. 07-9667
(S.D.N.Y. Feb. 8, 2008).
9
See generally Justin Hughes, Copyright and Incomplete Historiographies: Of
Piracy, Propertization, and Thomas Jefferson, 79 S. CAL. L. REV. 993 (2006) (summarizing
and challenging historical claims that copyright has become increasingly “propertized”).
10
9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901).
2011] THE PREHISTORY OF FAIR USE 1373
beginning of the American fair use doctrine.11 As this article

shows, the fair use doctrine is better understood as the
continuation of a long line of English fair abridgment cases,
dating back to the beginning of statutory copyright law in 1710.12
In evaluating the history of the fair use doctrine, it is a mistake
to start with Folsom v. Marsh; the complete history begins with
over a century of copyright litigation in the English courts. This
is the “prehistory” of the American fair use doctrine.13
This prehistory consists largely of fair abridgment cases
litigated in English courts of law and equity between 1710 (the
year the first copyright act was enacted) and 1841.
Abridgment—the process of making a shortened version or
abstract of a longer text—was common in this era, but its
lawful scope was contested. A review of early English copyright
cases and other aspects of the historical record leads to two
significant conclusions. The first is that statutory copyright,
virtually from its inception, went well beyond merely
mechanical acts of reproduction. Indeed, by the mid-eighteenth
century, courts had begun to limit the permissibility of
abridgments. The second insight is that there is in fact
substantial continuity between fair abridgment in the
premodern era and fair use in the United States today.
This article proceeds as follows: Part I begins with a brief
summary of the fêted case Folsom v. Marsh and its place in the
development of American copyright law. Folsom v. Marsh has
been criticized for expanding copyright protection beyond acts of
mere mechanical reproduction to include an abstract concept of
the work’s value. Of course, this critique is premised on the
belief that the scope of copyright prior to Folsom v. Marsh’s
intervention was so narrow that it tolerated almost all
secondary works. Part II exposes the frailty of this premise.
Specifically, Part II explores the foundation for the
mechanical conception of premodern copyright and argues that
11
See infra Part I.
12
Statute of Anne, 8 Ann., c. 19 (1710) (Eng.).
13
The prehistory of fair use coincides with premodern copyright, as the
expression is used by Sherman and Bently. Sherman and Bently draw the distinction
between modern and premodern copyright, using 1850 as a rough dividing line. For ease
of reference, this article refers to the period between 1710 and 1841 as the premodern era
of copyright. The premodern-modern distinction is useful in this context, as the categories
of intellectual-property law were quite fluid up until the mid-nineteenth century. And
only after the mid-1800s did the drive to internationalize copyright (a movement that
culminated in the Berne Convention) significantly influence copyright law. See BRAD
SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW:
THE BRITISH EXPERIENCE, 1760-1911, at 3 (1999).
it is incomplete. A rather narrow vision of literary property can

be gleaned from several sources: the apparently narrow grant
of rights in the Statute of Anne (the first copyright statute,
which went into effect in 1710),14 some of the earliest cases
interpreting the statute, and a number of contemporary
writings. As Part II also explains, however, a close reading of
the earliest copyright cases and treatises shows that
premodern copyright was not consistently limited to mere
mechanical acts of reproduction. From 1741 to 1841, courts
distinguished between abridgments of copyrighted works that
were deemed fair or bona fide, and those that were not. The
very existence of this distinction expands on the first copyright
statute’s narrow language.15 This crucial development in
copyright law predates Folsom v. Marsh by at least 100 years.16
As Part III establishes in detail, the criteria used to
evaluate claims of bona fide abridgment in the premodern cases
are surprisingly similar to the modern fair use doctrine in the
United States. Like their modern counterparts, judges in
premodern abridgment cases relied on case-by-case analysis and
evaluated the amount taken by the defendant in a highly
contextual fashion. Even more striking is the extent to which
early cases parallel the modern focus on market effect—namely,
the market effect of the defendant’s conduct—and on the extent
to which the defendant’s use is transformative. Although not
always expressed in these terms, questions of substitution
effects and the degree of labor and authorial skill injected by the
defendant permeated the premodern copyright cases.
Part IV concludes with a reassessment of Folsom v. Marsh
and its contribution to American copyright law. Understanding
the prehistory of fair use is useful for understanding fair use in
the present. The coevolution of copyright and fair use
demonstrates that fair use need not be a narrow and occasional
exception to the rights of copyright owners.
I. FOLSOM V. MARSH AND ITS QUESTIONABLE SIGNIFICANCE
Folsom v. Marsh concerned two different literary

treatments of the life of George Washington.17 The plaintiffs in
this seminal copyright dispute were Folsom, Wells & Thurston,
14
Statute of Anne, 1710, 8 Ann., c. 19, § 1 (Eng.).
15
See infra notes 115-16 and accompanying text.
16
See infra note 125 and accompanying text.
17
Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901).
a partnership of publishers that held the rights to Jared Sparks’

multivolume collection of The Writings of George Washington.18
The accused work was Reverend Charles Upham’s The Life of
Washington, which was mainly comprised of extracts from
Washington’s own writings.19 Upham’s abbreviated and
simplified Life of Washington, intended for local school libraries,
weighed in at a mere 866 pages—light in comparison to Sparks’
massive 6763-page compilation.20 About a third of Upham’s work
consisted of previously unpublished presidential writings,
presumably copied from Sparks’ compilation.21
Upham’s publisher, the firm Marsh, Capen & Lyon,22
argued that even if Folsom held the copyright in Sparks’ twelve-
volume collection of Washington’s writings, the good Reverend’s
work was nonetheless a fair abridgment that did not infringe.23
Once Washington’s papers and correspondence were published,
the publisher contended, anyone had the right to selectively use
those materials to prepare a new and original work.24
This defense was entirely plausible given the state of
the legal authorities at the time. As discussed in more detail in
the next part, similar abridgments had been allowed by
numerous English authorities.25 In the 1741 case Gyles v.
Wilcox, Lord Chancellor Hardwicke explained that a fair
abridgment should be regarded as a new book and not as a
trespass on the original that it was derived from.26 Thirty-four
18
WILLIAM W. STORY, REPORTS OF CASES ARGUED AND DETERMINED IN THE
CIRCUIT COURT OF THE UNITED STATES FOR THE FIRST CIRCUIT: 1812-1875, at 100-19
(1853). The Story Reports of the decision in Folsom v. Marsh contain a summary of the
master’s report. It is here that we learn that Charles Folsom was the principle plaintiff.
19
Id.; see also R. Anthony Reese, The Story of Folsom v. Marsh:
Distinguishing Between Infringing and Legitimate Uses, in INTELLECTUAL PROPERTY
STORIES 259, 269 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2006).
20
STORY, supra note 18, at 100-19.
21
The special master appointed to review the facts concluded that 319 pages
had been copied, but note that sixty-four of those pages were official documents that
should not have been subject to any copyright claim. See L. Ray Patterson, Folsom v.
Marsh and Its Legacy, 5 J. INTELL. PROP. L. 431, 433 (1998). Note also that the
defendant’s work did not reproduce any original writing by Sparks. Id. Justice Story’s
conclusion that Folsom somehow held the copyright to the words of President
Washington after their publication was probably erroneous at the time and would
certainly be wrong now. Id. at 436. We must suspend disbelief on this point in order to
comprehend the remainder of Justice Story’s decision.
22
Bela Marsh was the main defendant. See supra note 18.
23
24
Reese, supra note 19, at 280.
25
See infra Part II.
26
Gyles v. Wilcox, (1740) 26 Eng. Rep. 489 (Ch.). See infra notes 102-14 and
accompanying text.
years later, in Strahan v. Newbery, Lord Chancellor Apsley

found that Newbery’s abridgment of Dr. Hawkesworth’s
Voyages did not infringe the original. Rather, the lord
chancellor reasoned, Newberry had created “an allowable and
meritorious work” by employing his own understanding to
“retrench[] unnecessary and uninteresting circumstances [that]
rather deaden the narration.”27 Indeed, Newbery’s revised
edition preserved the substance of the original but reduced its
volume by as much as three-quarters.28 Likewise, in the 1761
case Dodsley v. Kinnersley, an abridgment of a popular novel in
the modestly titled Grand Magazine of Magazines was also
found to be noninfringing, principally because the copyright
owners had already published their own abstract of the book in
their own periodical.29
Nonetheless, Justice Story, who decided the case, had
little sympathy for such arguments. Although he acknowledged
the English authorities’ holding that “a fair and bona fide
abridgment of an original work” did not amount to copyright
piracy, he also relied on those same authorities for a series of
limiting principles. It was “clear,” in Justice Story’s view, “that
a mere selection, or different arrangement of parts of the
original work, so as to bring the work into a smaller compass,”
did not constitute a fair and bona fide abridgment.30 On the
contrary, he contended, to qualify as a fair and bona fide
abridgment, “[t]here must be real, substantial condensation of
the materials, and intellectual labor and judgment bestowed
thereon; and not merely the facile use of the scissors; or
27
Strahan v. Newbery, (1774) 98 Eng. Rep. 913 (K.B.) 913-14. The work in
question, generally referred to as Hawkesworth’s Voyages, was the first authorized
account of Captain Cook’s circumnavigation of the globe. The longer title was An
Account of the Voyages Undertaken by the Order of His Present Majesty, for Making
Discoveries in the Southern Hemisphere, and Successively Performed by Commodore
Byron, Captain Wallis, Captain Carteret, and Captain Cook, in the Dolphin, the
Swallow, and the Endeavour . . . by John Hawkesworth, printed for W. Strahan and T.
Cadell, 1773. The defendant’s work, Journal of the Resolution’s Voyage on Discovery to
the Southern Hemisphere, &c. Also a Journal of the Adventure’s Voyage, &c. with an
Account of the Separation of the Two Ships, and the Most Remarkable Incidents that
Befel Each, although extolled by the court, was reviewed as “hastily written, and
hastily printed.” 45 GENTLEMAN’S MAG. 591 (1775); see also Mark Leeming,
Hawkesworth’s Voyages: The First ‘Australian’ Copyright Litigation, 9 AUSTL. J. LEGAL
HIST. 159 (2004) (an excellent history of the copyright litigation in relation to
Hawkesworth’s Voyages).
28
Strahan v. Newbery, (1774) 98 Eng. Rep. 913 (K.B.) 913-14.
29
Dodsley v. Kinnersley, (1761) 27 Eng. Rep. 270 (Ch.). For further
discussion of Dodsley, see infra Part III.
30
Folsom v. Marsh, 9 F. Cas. 342, 345 (C.C.D. Mass. 1841) (No. 4901).
extracts of the essential parts, constituting the chief value of

the original work.”31
Deciding in favor of the plaintiff Folsom, Justice Story
drew a distinction between easy cases of copyright infringement,
where the defendant’s work is almost exactly the same as the
plaintiff’s (i.e., cases where “the whole substance of one work has
been copied from another, with slight omissions and formal
differences only, which can be treated in no other way than as
studied evasions”) and hard cases requiring a balance of “the
comparative use made in one of the materials of the other; the
nature, extent, and value of the materials thus used.”32
Illustrating this second category, Justice Story noted that, for
“the purposes of fair and reasonable criticism,” a review that
cites “largely from the original work” should be regarded as
fair.33 By contrast, a review that “cites the most important parts
of the work, with a view, not to criticise, but to supersede the use
of the original work, and substitute the review for it” should be
deemed a “piracy” as a matter of law.34 The distinction here is
predominantly one of effect: in Story’s view, a new work that
“supersedes” the original and “substitutes” for it infringed on the
rights of the copyright owner.35
What is the significance of Folsom v. Marsh? Justice Story’s
decision is often celebrated as the origin of the fair use doctrine in
the United States.36 Indeed, many elements of the decision are
discernible in the current statutory formulation of the doctrine.37
However, Folsom v. Marsh has also come to be viewed as a
significant expansion of the rights of copyright owners.
In a recent Yale Law Journal article, Professor Oren
Bracha argues that Folsom v. Marsh was a pivotal component
of American copyright law’s transformation in the nineteenth
31
Id. (citing Gyles v. Wilcox, (1740) 26 Eng. Rep. 489).
32
Id. at 344.
33
Id.
34
Id. at 344-45.
35
Id. Justice Story’s view can be rationalized as follows: if a new work
incorporates the most important parts of the original, then the risks of such
impermissible substitution increase.
36
Cases crediting the origin of the fair use doctrine to Justice Story include:
Integra Lifesciences I, Ltd. v. Merck KGaA, 331 F.3d 860, 876 (Fed. Cir. 2003)
(comparing the experimental use exemption in patent law to fair use); Rubin v. Boston
Magazine Co., 645 F.2d 80, 83 (1st Cir. 1981); and Encyclopedia Britannica Educ. Corp.
v. Crooks, 542 F. Supp. 1156, 1167 (W.D.N.Y. 1982). As Kaplan notes, the earliest
American report that actually uses the expression “fair use” is Lawrence v. Dana, 15 F.
Cas. 26, 60 (C.C.D. Mass. 1869) (No. 8136). BENJAMIN KAPLAN, AN UNHURRIED VIEW
OF COPYRIGHT 67 (1966).
37
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1993).
century.38 Over the course of the nineteenth century, Bracha

contends, copyright changed from an exclusive right to make
verbatim copies of particular texts to an abstract right of
general control in which the only boundaries of a work were
identified vis-à-vis its market value.39
Significantly, Bracha sees Justice Story as a central
actor in this transformation. Bracha argues that the concept of
fair use announced in Folsom v. Marsh was a fundamental
change in copyright’s baseline. In the past, he reasons,
“infringement was limited to near-verbatim reproduction and
all other subsequent uses were considered legitimate; in the
new fair use environment, all subsequent uses became
presumptively infringing unless found to be fair use.”40 Thus, in
Bracha’s view, Folsom v. Marsh is both transformative and
ironic: “[A]lthough the fair use doctrine is commonly celebrated
today as one of the major safeguards against overexpansion of
copyright protection[,] at the time it was introduced by Justice
Story[,] . . . it was a vehicle for a radical enlargement of the
scope of copyright.”41
Without doubt, there is something to be said for the
general story of transformation and expansion that Bracha
relates. An examination of the early English copyright cases,
however, casts this transformation in a different light. Notably,
the disjunctive view of Folsom v. Marsh presumes that the scope
of copyright prior to Justice Story’s intervention was so limited
that it tolerated almost all secondary works. But as Part II
explores, English case law predating Folsom v. Marsh undercuts
this mechanical conception of premodern copyright. Similarly,
the substantial continuity between premodern fair abridgment
cases and the modern fair use doctrine contradicts the notion
that the fair use doctrine originates with Folsom v. Marsh.
38
Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and
Liberal Values in Early American Copyright, 118 YALE L.J. 186 (2008).
39
Id.; see also BRAD SHERMAN & LIONEL BENTLY, THE MAKING OF MODERN
INTELLECTUAL PROPERTY LAW: THE BRITISH EXPERIENCE 1760-1911 (1999) (describing
the same transition in England).
40
Bracha, supra note 38; see also Patterson, supra note 21, at 432 (arguing
that Justice Story redefined the concept of copyright infringement in Folsom v. Marsh:
“[I]n his hands became any copying, duplicative or imitative, in whole or in part of the
copyrighted work. This redefinition of infringement enlarged the copyright monopoly
and became the basis for what was to become fair use.”).
41
Bracha, supra note 38, at 229-30; see also Matthew Sag, God in the
Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine, 11 MICH.
TELECOMM. & TECH. L. REV. 381, 414 (2005) (arguing that the existence of the fair use
doctrine allows the rights of copyright owners to be phrased more expansively than
would otherwise be possible).
II. ABRIDGMENTS, COMPILATIONS, AND OTHER FAIR USES IN

THE PREMODERN ERA OF COPYRIGHT
English copyright law in the premodern era offers

significant insights into the nineteenth-century transition of
American copyright law. The notion that Folsom v. Marsh
constituted a radical departure from precedent can be properly
evaluated only by considering the state of the law before that
case. With a handful of exceptions, most copyright case law
predating Folsom v. Marsh was English. In fact, prior to
Folsom v. Marsh, there were only eleven reported copyright
decisions in the United States. A review of those decisions
confirms that the far more developed body of English case law
was treated as persuasive in mid-nineteenth-century American
courts. For example, in the Supreme Court’s first copyright
case in 1834, Wheaton v. Peters, the majority cited eight
English cases and no American authorities; the dissent cited
three additional English cases and two American cases.42
Likewise, in Folsom v. Marsh, Justice Story cited sixteen
English authorities and not a single U.S. case.43 The use of
English authority clearly outweighs the nascent American case
law in almost all reported U.S. cases up to 1841.44 Thus, an
evaluation of Folsom v. Marsh’s significance in the
development of American copyright law requires an
understanding of the development of premodern English
copyright law.
The scope of premodern copyright is usually depicted as
narrow, limited, and mechanical.45 As surveyed in more detail
42
Wheaton v. Peters, 33 U.S. 591 (1834).
43
44
In addition to Wheaton and Folsom, see Gray v. Russell, 10 F. Cas. 1035
(C.C.D. Mass. 1839) (No. 5728); Wheaton v. Peters, 29 F. Cas. 862 (C.C.E.D. Pa. 1832)
(No. 17,486); Clayton v. Stone, 5 F. Cas. 999 (C.C.S.D.N.Y. 1829) (No. 2872); Blunt v.
Patten, 3 F. Cas. 763 (C.C.S.D.N.Y. 1828) (No. 1580); Ewer v. Coxe, 8 F. Cas. 917
(C.C.E.D. Pa. 1824) (No. 4584); Binns v. Woodruff, 3 F. Cas. 421 (C.C.D. Pa. 1821) (No.
1424). For the English copyright cases most frequently cited by U.S. courts at this time,
see Beckford v. Hood, (1798) 101 Eng. Rep. 1164 (K.B.); Blackwell v. Harper, (1740) 26
Eng. Rep. 458 (Ch.); Donaldson v. Beckett, (1774) 1 Eng. Rep. 837 (H.L.); Bramwell v.
Halcomb, (1836) 40 Eng. Rep. 1110 (Ch.); Millar v. Taylor, (1769) 98 Eng. Rep. 201
(K.B.) 226; Pope v. Curl, (1741) 26 Eng. Rep. 608 (Ch.); and Tonson v. Collins, (1761) 96
Eng. Rep. 169 (K.B.).
45
See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES
TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 19
(2004) (stating that the historical “distinction between republishing someone’s work on
the one hand and building upon or transforming that work on the other” has been lost);
Craig Joyce & L. Ray Patterson, Copyright in 1791: An Essay Concerning the Founders’
View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the
below, this view finds support in several factors—the text of

the Statute of Anne itself, the arguments of perpetual
copyright supporters, the comments of literary luminaries
(such as Dr. Samuel Johnson), and the outcomes of certain
prominent early copyright cases—all of which suggest a narrow
scope of copyright. In particular, the social importance and
legality of abridgment was frequently asserted.46 Based on this
narrow vision, Folsom v. Marsh, the first American fair use
case, looks like a radical departure from both the spirit and
letter of the law.
Part II.A begins by exploring the foundations of the
mechanical view of premodern copyright. As Part II.B
demonstrates, however, the actual scope of premodern
copyright was not as narrow as it is often depicted. Indeed, the
legitimacy of abridgment and other textual borrowing was
contested both inside and outside the courtroom throughout the
premodern era.
A. The Mechanical Conception of Premodern Copyright
The first place to look for a narrow conception of premodern

copyright is the text of the Statute of Anne, also known as the
Copyright Act. The Act begins with the following rationale:
Whereas printers, booksellers, and other persons have of late
frequently taken the liberty of printing, reprinting, and publishing,
or causing to be printed, reprinted, and published, books and other
writings, without the consent of the authors or proprietors of such
books and writings, to their very great detriment, and too often to
the ruin of them and their families . . . .47
As this preamble indicates, the Act was drafted to address the

paradigm of rivalrous reprinting of entire works. No thought
appears to have been given to abridgments, translations,
compilations, or derivative works. Historians have debated
whether the Statute of Anne should be seen as displacing,
regulating, or merely entrenching the cozy monopoly of London
booksellers in the seventeenth century.48 Regardless of that
U.S. Constitution, 52 EMORY L.J. 909, 915 (2003) (concluding that the copyright
holder’s rights under the Statute of Anne were limited to printing and vending copies
of the work).
46
See infra note 74 and accompanying text.
47
48
While some authors regard the passage of the Statute of Anne as marking
a shift from a regime of censorship and trade regulation to one of property rights,
others see the act primarily in terms of trade regulation. Compare Mark Rose, supra
debate, there can be little doubt that the Act’s drafters had one
particular problem in mind: rivalrous republication of identical
books.49 By omission or design, the Statute of Anne did not
address fractional copying or the similarity threshold for works
based on original works with minor textual differences. Under
the statute, “the author of any book or books already printed”
or his assignees, was entitled to “the sole right and liberty of
printing such book and books for the term of one and twenty
years.”50 Construed literally, the Act regulated only exact and
entire reprinting.51
Subsequent legislative history might also indicate a
narrow construction of the Statute of Anne. Although the Act
was enacted in response to sustained lobbying by the London
bookselling trade, that same group ultimately regarded it as
unsatisfactory.52 Consequently, a number of London booksellers
began to lobby for significant changes to the 1710 Act a mere
twenty years after its enactment.53 In particular, a bill was
introduced in the House of Commons on March 3, 1737,54 that
would have made it unlawful to “print, publish, import, or sell
any abridgement of [a copyrighted work], or any translation
thereof . . . without the consent of the author or proprietor first
obtained in writing” within the first three years of the work’s
publication.55 The fact that booksellers found it necessary to
make their monopoly over abridgments and translations
explicit suggests that this right was not perceived as part of the
note 1, at 48, with L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF
COPYRIGHT: A LAW OF USERS’ RIGHTS 27-29 (1991). There is also disagreement as to
whether the act was primarily drafted in service of the London booksellers, or whether
it embodied a new social bargain between authors, booksellers, and the reading public.
Compare JOHN FEATHER, A HISTORY OF BRITISH PUBLISHING 75 (Routledge 1988), with
RONAN DEAZLEY, ON THE ORIGIN OF THE RIGHT TO COPY: CHARTING THE MOVEMENT OF
COPYRIGHT LAW IN EIGHTEENTH-CENTURY BRITAIN (1695-1775) 46 (2004).
49
ISABELLA ALEXANDER, COPYRIGHT LAW AND THE PUBLIC INTEREST IN THE
NINETEENTH CENTURY 29 (2010).
50
51
Richard Godson, the author of an early treatise on patent and copyright
law, notes that consistent with its Saxon origins, the word book may be applied to any
writing, whether bound or unbound, or consisting of one sheet or many. RICHARD
GODSON, A PRACTICAL TREATISE ON THE LAW OF PATENTS FOR INVENTIONS AND OF
COPYRIGHT: WITH AN INTRODUCTORY BOOK ON MONOPOLIES 219-20 (1823).
52
See DEAZLEY, supra note 48, at 94-96.
53
Id.
54
Journal of the House of Commons, vol. 22, Mar. 3, 1737, at 769.
55
An Act for the Encouragement of Learning, 1737, BL 357, c.7. § 41, cl. 22,
reprinted in PRIMARY SOURCES ON COPYRIGHT (1450-1900) (L. Bently & M. Kretschmer
eds., 2008), available at www.copyrighthistory.org. (emphasis added). This article uses
the modern spelling of abridgment except when quoting directly from original sources.
original grant contained in the Statute of Anne. This

suggestion becomes even stronger when considering that this
“new” right was only granted for a period of three years.56
The first reported case to test the scope of copyright
under the newly enacted Statute of Anne was Burnett v.
Chetwood in 1721.57 The plaintiff in this equity proceeding was
the executor of a deceased author who had written two books in
Latin.58 The executor sought to enjoin the publication of English
translations of both books—the unpublished De Statu
Mortuorum and the published work Archoeologia Philosophica.59
The defendants denied that translations fell within the
intended scope of the Statute of Anne.60 Translations, they
argued, went beyond the merely mechanical art of printing and
required the investment of the translator’s own skill, style, and
expression.61 Chancellor Parker leaned toward the view that “a
translation might not be the same with the reprinting the
original, on account that the translator has bestowed his care
and pains upon it, and so not within the prohibition of the
act.”62 Nonetheless, the court granted an injunction on the more
56
While some have argued that the terms of royal printing patents before
and after the Statute of Anne’s enactment bear on its construction, the evidence here is
inconclusive. Ronan Deazley has recently reviewed a large number of printing patents
granted in the seventeenth and eighteenth centuries. He notes that although some
prominent royal licenses specifically included an exclusive right with respect to
printing abridgments and/or translations, the majority did not. DEAZLEY, supra note
48, at 94-96 (citing Shef Rogers, The Use of Royal Licences for Printing in England,
1695-1760, in 1 THE LIBRARY 133, 133-92 (2000)).
57
(1721) 35 Eng. Rep. 1008 (Ch.). Thanks to Tomás Gómez-Arostegui for
alerting me to the fact that, despite common citation to the contrary, this case occurred
in 1721, not 1720.
58
For a detailed discussion of Burnett v. Chetwood, see Stephen A. Siegel,
Injunctions for Defamation, Juries, and the Clarifying Lens of 1868, 56 BUFF. L. REV.
655, 684 (2008).
59
Id. Although decided in 1721, Burnett v. Chetwood was only reported
sometime between 1817 and 1819 as a note to Chancellor Eldon’s decision in Southey v.
Sherwood, (1817) 35 Eng. Rep. 1006 (Ch.) (citing Burnett v. Chetwood, (1817) 35 Eng.
Rep. 1008 (Ch.)). We know, however, that the outcome of Burnett v. Chetwood was
known to many in the eighteenth century because it is mentioned in the 1752 case of
Tonson v. Walker, (1752) 36 Eng. Rep. 1017, 1020 (Ch.) (discussing earlier cases). As
Siegel notes, reference to unreported cases in the Register’s Book was commonplace in
the era before official court reporting. Siegel, supra note 58, at 687. But that record
would not have contained the rationale for enjoining the translating or printing of the
Archoeologia Philosophica. Id.
60
Burnett v. Chetwood, (1817) 35 Eng. Rep. 1008 (Ch.).
61
Id.
62
Id. at 1009. Although this part of the decision is dicta, Robert Maugham,
the author of what is arguably the first copyright treatise, reports this passage of
Burnett v. Chetwood as though it were the holding. ROBERT MAUGHAM, TREATISE ON
THE LAWS OF LITERARY PROPERTY 89 (Longman, Rees, Orme, Brown, & Green, 1828).
idiosyncratic basis that the “strange notions” contained in the

original Latin work should not be exposed to the less educated
who could read them in English.63 The Burnett court’s
suggestion that a translation should be regarded as a new
work—rather than a mere reprinting of the original—indicates
a fairly narrow view of copyright owners’ rights under the
Statute of Anne.
The pronouncements of perpetual-copyright supporters
also lend credence to the notion that premodern copyright was
envisaged as a limited right regulating the wholesale
reproduction of books. Advocates of perpetual common-law
copyright were naturally drawn to stress the narrow scope of
the right, if only to defend it against their critics. Blackstone,
for example, was a staunch supporter of an author’s enduring
right, based on a Lockean conception of natural rights.64 In his
Commentaries, Blackstone described literary property in terms
of identity. He argued that
the identity of a literary composition consists intirely [sic] in the
sentiment and the language; the same conceptions, clothed in the
same words, must necessarily be the same composition: and
whatever method be taken of exhibiting that composition to the ear
or the eye of another, by recital, by writing, or by printing, in any
number of copies or at any period of time, it is always the identical
work of the author which is so exhibited.65
In Blackstone’s view, the infringement of literary property

required a level of similarity verging on identity: the “same
conceptions” in the “same words.”66 Blackstone’s view was
endorsed by all three of the early copyright treatise authors,
Robert Maugham, Richard Godson, and Isaac Espinasse.67 This
narrow conception of copyright would seem to allow ample
space for partial appropriation and abridgment; indeed,
63
Burnett v. Chetwood, (1817) 35 Eng. Rep. 1008 (Ch.) 1009.
64
2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 405-06
(1766).
65
Id.
66
Id.
67
MAUGHAM, supra note 62, at 126; GODSON, supra note 51, at 215; ISAAC
ESPINASSE, A TREATISE ON THE LAW OF ACTIONS ON STATUTES, REMEDIAL AS WELL AS
PENAL, IN GENERAL (1824). Although Godson adopts Blackstone’s language and agrees
that the transcription “of nearly all the sentiments and language of a book” would
amount to “a glaring piracy,” he also adds that “[t]o copy part of a work, either by
taking a few pages verbatim, where the sentiments are not new, or by imitation of the
principle ideas, although the treatises are in other respects different, is also to be
illegal.” GODSON, supra note 51, at 215. This statement is actually quite a broad
formulation of copyright’s reach into partial similarity.
evidence indicates that Blackstone himself was amenable to

this result.68
The 1769 case Millar v. Taylor provides another
example of perpetual-copyright advocates’ reliance on a narrow
construction.69 In that case, a majority of the King’s Bench
upheld the existence of a common-law copyright (a right that
that House of Lords eventually overturned in the 1774 case
Donaldson v. Beckett).70 As part of the Millar majority, Justice
Aston insisted that
[although] the right of the copy still remains in the author [the
public obtains] an unlimited use of every advantage that the
purchaser can reap from the doctrine and sentiments which the work
contains. He may improve upon it, imitate it, translate it; oppose its
sentiments: but he buys no right to publish the identical work.71
Arguably the best evidence of the conventional premodern

understanding of copyright scope is the then-prevailing attitude
toward abridgments. Passages by famous authors, judges, and
legal commentators extolling the importance and legality of
abridgment in the premodern era are not difficult to locate.
Subsequent authors’ liberty to abridge existing works was seen as
part of the sphere of public use that authors admitted upon a
work’s publication. The beginning of Godson’s commentary on
abridgments reflects this understanding:
Nearly upon the same principles by which it is shewn that there
cannot be a monopoly of a general subject, it appears that books
themselves for certain purposes, besides the mere act of reading
them, may be used by the public . . . . They may be taken as the
ground work of other literary labours.72
Abridgment, compilation, and reprinting played an important

role in the dissemination of scientific, technical, and cultural
knowledge in the premodern era of copyright. As Ronan
Deazley summarizes, “periodical publication throughout the
68
See supra note 27 (discussing Strahan v. Newbery). Blackstone assisted
Lord Chancellor Apsley in his decision in Strahan v. Newbery, (1774) 98 Eng. Rep. 913
(K.B.). According to the case report, the two men spent some hours discussing the
matter, and they agreed that an abridgment such as Newbery’s was an allowable and
meritorious new work and not an infringement. Id.
69
Millar v. Taylor, (1769) 98 Eng. Rep. 201 (K.B.) 226.
70
Id. at 257 (discussing Donaldson v. Beckett, (1774) 1 Eng. Rep. 837 (H.L.)).
71
Id. at 226.
72
GODSON, supra note 51, at 238.
eighteenth century was an appropriative affair in both

substance and method.”73
One of the most famous and forceful advocates of the
right of abridgment was the author, essayist, and commentator
Dr. Samuel Johnson. In an article titled Considerations on the
Case of Dr. Trapp’s Sermons, Abridged by Mr. Cave, Johnson
emphatically defended the practice of abridgment based on
three principal grounds.74 Johnson’s first argument addressed
fairness. Johnson argued that the abridgment was so widely
practiced and well understood that neither authors nor
publishers had cause to complain when their works were
abridged. While Johnson acknowledged that an abridgment
may do some harm to authors and publishers, he noted that
this result, even if unstated, was a recognized part of the
copyright bargain. He thus concluded that “[t]o abridge a book,
therefore, is no violation of the right of the proprietor, because
to be subject to the hazard of an abridgement was an original
condition of the property.”75
Second, Johnson contended that abridging larger works
into smaller extracts was vital to educational advancement—a
theme that resonated with the Statute of Anne’s avowed
purpose of encouraging learning.76 He reasoned that
abridgments facilitate the transmission of knowledge “by
contracting arguments, relations, or descriptions, into a narrow
compass; conveying instruction in the easiest method, without
fatiguing the attention, burdening the memory, or impairing
the health of the student.”77 As an illustration, he noted that
73
Ronan Deazley, Commentary on Gyles v. Wilcox (1741), in PRIMARY SOURCES
ON COPYRIGHT (1450-1900) (L. Bently & M. Kretschmer eds., 2008), available at
http://www.copyrighthistory.org/cgi-bin/kleioc/0010/exec/ausgabecom/%22uk_1741%22.
74
Dr. Samuel Johnson, Considerations on the Case of Dr T[rapp]’s Sermons,
Abridged by Mr. Cave, 1739, 57 GENTLEMAN’S MAG. (1787), reprinted in ARTHUR
MURPHY, THE WORKS OF SAMUEL JOHNSON 547 (1st ed. 1837). It can hardly be
overlooked that Samuel Johnson was employed by the very same magazine that had
abridged Dr. Trapp’s sermons.
75
Id.
76
Statute of Anne, 1710, 8 Ann., c. 19 (Eng.). The long title of the Statute of
Anne is An Act for the Encouragement of Learning, by Vesting the Copies of Printed
Books in the Authors or Purchasers of Such Copies, During the Times Therein
Mentioned. Id.
77
JOHNSON, supra note 74; see also GODSON, supra note 51, at 238 (noting
that “[m]any valuable works are so voluminous that abridgments of them are
extremely useful”).
the Transactions of the Royal Society were generally read as

abridgments, to the great improvement of science.78
Third, Johnson maintained that established conventions
in the printing industry confirmed the legality of abridgment.
Without citing any case law, Johnson confidently declared that
the practice of abridgment was “an act, in itself legal, and
justifiable by an uninterrupted series of precedents, from the
first establishment of printing among us, down to the present
time.”79 Johnson observed that “numberless abridgements that
are to be found of all kinds of writing, afford sufficient evidence
that they were always thought legal, they are printed with the
names of the abbreviators and publishers without the least
appearance of clandestine transaction.”80 In Johnson’s view, the
abridgment of well-known works, such as Clarendon’s History
of the Rebellion and Civil Wars in England, with the apparent
forbearance of their proprietors was abundant evidence of the
practice’s legality.81
Johnson’s defense of abridgment as lawful and socially
productive is echoed in Robert Maugham’s comments on the
topic in his Pirating of the Copyright in Printed Books.82 As
Maugham explains, “An abridgment of a voluminous work,
executed with skill and labor, in a bona fide manner, is not only
lawful in itself . . . and exempt from the charge of piracy[,] but
is protected from invasion by subsequent writers.”83
The law not only treated abridgments as noninfringing,
but accorded copyright to abridgments themselves and
protected them against “invasion by subsequent writers.”84 In
other words, abridgments were lawfully created new works
and, in view of their utility and merit, ought to be encouraged.85
78
For a history of the evolution of the Transactions of the Royal Society, see
Adrian Johns, Miscellaneous Methods: Authors, Societies and Journals in Early
Modern England, 33 BRIT. J. HIST. SCI. 159, 159-86 (2000).
79
Johnson, supra note 74.
80
Id. Later in the same article, Johnson also stated that “there are few books
of late that are not abridged.” Id.
81
Id.
82
MAUGHAM, supra note 62, at 126.
83
Id. Godson illustrates the import of the law with an example: “[O]ne man
may compose a work, for instance in the Latin language, another abridge it, a third
translate it, a fourth write annotations upon it; and every one of them will acquire a
copyright in the product of his own ingenuity and labour.” GODSON, supra note 51, at
344; see also ESPINASSE, supra note 67, at 78.
84
Id.; see also ESPINASSE, supra note 67, at 77-78.
85
Consistent with the case law he reports, Maugham’s

view of abridgment was grounded in a recognition of the skill
and labor displayed by the abridger.86 He quotes Lord
Hardwicke in the 1741 case Gyles v. Wilcox: “A real and fair
abridgment, . . . may with great propriety be called a new book,
because the invention, learning, and judgment of the author
are shewn in it, and in many cases abridgments are extremely
useful.”87 Of course, treatise writers had a strong interest, on
one hand, in proclaiming their freedom to make abridgments
and, on the other hand, in protesting their property interest in
notes and annotations made to preexisting works. It is
unsurprising, then, that Maugham boldly proclaims the
legality of both legal and literary compilations, by which he
means “a collection from various authors into one work.”88 In
Maugham’s eyes, abridgments had such high social utility that
they must be given “considerable latitude.”89 He argued that
“[i]t seems a necessary consequence of the legality of a
compilation, that the law must also sanction its being done in a
complete manner, and to effect this object, the quotations must
generally be both full and numerous.”90
In sum, several sources—the text of the Statute of Anne,
the results of early cases (such as Burnet v. Chetwood and
Strahan v. Newbery), and the writings of Blackstone and
Johnson—suggest a rather narrow vision of literary property
under the first copyright act. Support for this view can also be
found in the early copyright treatises of Maugham, Godson,
and Espinasse.
B. A Broader Conception of Premodern Copyright
Having made the case for a narrow view of premodern

copyright, it is now time to unmake it. As the remainder of this
section makes clear, the narrow characterization of premodern
copyright—as limited to near-verbatim reproduction and
permissive use of all other subsequent uses of a work—is
misplaced. Although the scope of copyright in the premodern
era was undoubtedly narrower than it is today, it did not leave
abridgment entirely unconstrained. The legality of abridgment
86
Id. at 129.
87
Id. (citing Gyles v. Wilcox, (1741) 26 Eng. Rep. 489 (Ch.)).
88
89
Id.
90
Id.
in the premodern period was in fact heavily qualified.

Furthermore, not all authors agreed with Samuel Johnson on
its virtues. For example, Daniel Defoe, writing in 1704, decried
abridgment without the author’s consent as “a certain sort of
Thieving which is now in full practice in England.”91
Abridgment was a staple feature of the emerging
magazine business of the mid-1700s.92 Monthly digests, such as
Edward Cave’s Gentleman’s Magazine, featured original
composition as well as extensive extracts from other periodicals
and books. Cave’s liberal use of abridgment was tested in
Austen v. Cave. The plaintiffs in Austen—a trio of London
booksellers named Austen, Gilliver, and Clark—brought an
action against Cave in the Court of Chancery on August 7,
1739.93 Cave defended that he was free to publish “short
extracts, parts of books, pamphlets or other writings newly
published on various subjects” and that this practice was
beneficial to the proprietors of such books.94 According to
Johnson’s account, Cave had copied from only thirty-seven
individual pages of Dr. Trapp’s original sixty-nine-page book,
The Nature, Folly, Sin and Danger of Being Righteous over-
Much.95 Furthermore, those thirty-seven pages had been
reproduced only in part—amounting to a mere thirteen pages
of the same print in Gentleman’s Magazine.96
Lord Hardwicke issued a temporary injunction to
prohibit Cave from printing the book or any part of it until he
answered the plaintiff’s complaint.97 When the answer came,
however, the court found it insufficient.98 Although Cave was
given additional time to resubmit his pleadings, no such
pleadings were ever entered, and the injunction remained in
91
DANIEL DEFOE, AN ESSAY ON THE REGULATION OF THE PRESS 25 (Blackwell
1958) (1704); see also JOHN DUNTON, THE LIFE AND ERRORS OF JOHN DUNTON, CITIZEN
OF LONDON 52 (1818) (complaining of the prevalence of abridgment by “a whole army of
Hackney Authors that keep their grinders moving by the travail of their pens”).
92
See generally ROBERT D. MAYO, THE ENGLISH NOVEL IN THE MAGAZINES
1740-1815 (1962) (concluding that epitomes and abridgments were widely employed as
alternative to wholesale piracy).
93 r
Austen v. Cave, C33/371, f. 493 (Ch. 1739).
94
Deazley, supra note 73.
95
Compare JOSEPH TRAPP, THE NATURE, FOLLY, SIN, AND DANGER OF BEING
RIGHTEOUS OVER-MUCH (Austen 1739), available at http://books.google.com/books?id=
LGU3AAAAMAAJ, with The Nature, Folly, Sin and Danger of Being Righteous Over-
Much, 9 GENTLEMAN’S MAG., June 1739, at 288-92 (on file with author).
96
Johnson, supra note 74.
97 r
Austen v. Cave, C33/371, f. 493 (Ch. 1739).
98
See ALEXANDER, supra note 49.
force.99 Thus, despite Johnson’s insistence that the legality of

abridgment was justified “by an uninterrupted series of
precedent,” one of the earliest abridgement cases seems to have
found that a reproduction of thirteen pages out of an original
sixty-nine was excessive.100
Lord Hardwicke’s decision in favor of the plaintiff in
Austen v. Cave—unreported and unmentioned in early
copyright treatises—has been understandably overshadowed
by the lord chancellor’s proabridgment statements in Gyles v.
Wilcox, decided a mere two years later.101
Like many early copyright cases, the controversy in
Gyles centered on an important book of learning, Sir Matthew
Hale’s Historia Placitorum Coronæ (The History of the Pleas of
the Crown).102 Although Hale died on Christmas Day 1676, his
Historia Placitorum Coronæ was not published in an
authorized form until 1736.103 The defendant, John Wilcox, had
commissioned an abridgment of the Historia, to be entitled
Modern Crown Law.104 The plaintiffs alleged that the
defendant’s work “borrowed verbatim from Sir Matthew Hale’s
Pleas of the Crown”—omitting only statutes that had been
99
See id.
100
But note that four years later, the same publisher successfully answered a
similar claim of copyright infringement in relation to an abridgment of Memoirs of an
Unfortunate Young Nobleman that appeared in his magazine. See Cogan v. Cave,
(1743) Eng. Rep. (Ch.); 13 GENTLEMAN’S MAG., Feb. 1743, at 93-94; id. at 204-05; 13
GENTLEMAN’S MAG., June 1743, at 305-06.
101
Lord Hardwicke’s statements in Gyles are not surprising, as the lord
chancellor himself dismissed the significance of decisions made on motion where he
ruled “without much consideration.” See Gyles v. Wilcox, (1741) 26 Eng. Rep. 489
(discussing Read v. Hodges, a 1740 case involving the abridgment of John Motley’s The
History of the Life of Peter the First Emperor of Russia). Note that the litigation in
Gyles actually commenced in November 1737, before Austen v. Cave. See Ronan
Deazley, The Statute of Anne and the Great Abridgement Swindle (working paper 2010)
(on file with the author).
102
Gyles v. Wilcox, (1741) 26 Eng. Rep. 489; see also Barnardiston, Report of
Gyles v. Wilcox (London 1741), available at http://www.copyrighthistory.org/cgi-bin/
kleioc/0010/exec/ausgabe/%22uk_1741b%22. As reported, the decision is inconsistent as
to whether the work in question is the more abbreviated Pleas of the Crown or the more
expansive Historia Placitorum Coronæ, first published in 1736. The court may have
regarded these two works as merely different versions of the same work. Maugham
appears to regard it as the latter, but again without differentiation. SIR M. HALE,
HISTORIA PLACITORUM CORONÆ: THE HISTORY OF THE PLEAS OF THE CROWN (1736).
103
P. R. Glazebrook, Introduction, in 1 SIR MATTHEW HALE, PLEAS OF THE
CROWN: A METHODICAL SUMMARY 1678, at iii (1971).
104
Gyles, 26 Eng. Rep. at 490. The defendant’s work was also referred to in
the original bill of complaint to the Court of Chancery as A Treatise of Modern Crown
Law. See Deazley, supra note 101.
repealed—and translated “all the Latin and French quotations”

in Hale’s book into English.105
The first indication of the Gyles decision’s dual nature is
revealed by Lord Hardwicke’s approach to interpreting the
Statute of Anne. As already noted, the 1710 statute was
expressed in terms easily reconciled with the view that
copyright was merely “the sole liberty of printing and
reprinting” works in their entirety.106 The defendant publisher
urged the court to adopt a similarly narrow reading—arguing
that the Statute of Anne, as an act of monopoly, should be
strictly construed.107 The lord chancellor rejected this
interpretation, saying,
I am quite of a different opinion, and that it ought to receive a liberal
construction, for it is very far from being a monopoly, as it is
intended to secure the property of books in the authors themselves,
or the purchasers of the copy, as some recompence for their pains
and labour in such works as may be of use to the learned world.108
Lord Hardwicke’s purposive reading of the statute led

him to an equivocal position on the legality of abridgment.
Distinguishing reprints with minor alterations from “true
abridgments,” Hardwicke held that, “where books are colorably
shortened only, they are undoubtedly within the meaning of
the [Statute of Anne], and are a mere evasion of the statute,
and cannot be called an abridgment.”109 But the lord chancellor
also noted that
this [proposition] must not be carried so far as to restrain persons from
making a real and fair abridgment, for abridgments may with great
propriety be called a new book, because not only the paper and print,
but the invention, learning, and judgment of the author is shewn in
them, and in many cases are extremely useful, though in some instances
prejudicial, by mistaking and curtailing the sense of an author.110
Echoing Samuel Johnson—whose commentary Lord Hardwicke

had almost undoubtedly read—he cautioned that a rule
restraining all abridgments would have “mischievous
consequences, for the books of the learned, Les Journals des
105
Gyles, 26 Eng. Rep. at 489.
106
Statute of Anne, 8 Ann., c. 19 (1710) (Eng.).
107
Gyles, 26 Eng. Rep. 489.
108
Id. at 490.
109
Id.
110
Id. (emphasis added).
Scavans, and several others that might be mentioned, would be

brought within the meaning of this Act of Parliament.”111
Lord Hardwicke continued the injunction, pending a
master of the court’s report (assisted by “two Persons skilled in
the Profession of Law”) on the similarities between the two
works.112 The result of this court-assisted arbitration proceeding
was an agreement that the defendant’s work was a fair
abridgment outside the Statute of Anne’s scope.113 Accordingly,
the injunction was dissolved.114
Although Gyles is often cited as the origin of the fair use
doctrine in England and has generally been received as a
proabridgment decision, Lord Hardwicke’s reasoning gave as
much to copyright owners as it took away. On the one hand,
Gyles confirmed the legality of some abridgments (those
described as fair).115 Yet it also entrenched a broad purposive
reading of the Statute of Anne and condemned another set of
abridgments (those deemed unfair) as infringing copyright.116
Lord Hardwicke’s purposive reading of the copyright statute
was also an expansive one.
Another abridgment case suggests that the eventual
vindication of the Gyles defendant was far from preordained. In
the 1801 case Butterworth v. Robinson, Butterworth alleged
that the defendant’s Abridgment of Cases Argued and
Determined in the Courts of Law was an impermissible copy of
the plaintiff’s Term Reports (reports of cases in the courts of
law).117 The defendant had extracted the same cases as
Butterworth with certain omissions, such as the arguments of
counsel.118 The defendant had also restructured the reports—
presenting the material in alphabetical, as opposed to
111
Les Journals des Scavans was the French equivalent of the Transactions of
the Royal Society. What is curious about Hardwicke’s comment is that the French
journal, in any event, would not have been subject to copyright protection in England
at the time. The Statute of Anne did not “prohibit the importation, vending, or selling
of any books in Greek, Latin, or any other foreign language printed beyond the
seas . . . .” Statute of Anne, 8 Ann., c. 19, § 7 (1710) (Eng.).
112
Gyles, 26 Eng. Rep. at 419.
113
This is made clear in the discussion of Gyles v. Wilcox in Tonson v. Walker,
(1752) 36 Eng. Rep. 1017 (Ch.).
114
Id.
115
See ROBERT BURRELL & ALLISON COLEMAN, COPYRIGHT EXCEPTIONS: THE
DIGITAL IMPACT 255-56 (2005) (arguing that the Statute of Anne was subject to broad
purposive reading almost from its inception).
116
See id.
117
Butterworth v. Robinson, (1801) 31 Eng. Rep. 817 (Ch.).
118
Id.
chronological, order.119 At trial, the plaintiff characterized these

alterations as an artful arrangement designed to give the
appearance of a new work.120 Finding the defendant’s
publication to be “extremely illiberal,” Lord Chancellor
Loughborough issued an injunction on the plaintiff’s motion,
with leave for the defendant to answer.121 As far as can be
determined, the matter was not brought before the court again.
Austen v. Cave, Butterworth v. Robinson, and even Gyles
v. Wilcox illustrate that the scope of copyright was not
consistently limited to merely mechanical acts of reproduction
in the premodern era. There were in fact numerous instances
where defendants were enjoined from partial copying and even
nonliteral copying.122 While the scope of permissible abridgment
and reuse was broad by modern standards, courts in the
premodern era did not regard all abridgments as the same;
rather, they drew a distinction between those that were fair or
bona fide, and those that were not. Elaborating on the
threshold of copying that amounts to piracy, Godson notes,
a variance in form and manner is a variance in substance, and that
nay material melioration cannot be considered as a piracy; yet a
piracy is committed whether the author attempt an original work, or
call his book an abridgment; if the principal parts of a book are
servilely copied, or unfairly varied.123
In other words, neither the honest intention to create an

original work nor merely labeling a work as an abridgment
were sufficient to elude the author’s copyright in every case.
Godson continues,
119
Id.
120
Id.
121
Id. In his treatise, Maugham takes issue with this decision: “Yet a selection
of what is material from a large body of Reports, commodiously arranged, whether
alphabetical or systematic, seems an original work. Indeed the right is undisputed of
selecting passages from books and reports (including entire judgments) in treatises on
particular subjects.” MAUGHAM, supra note 62, at 132.
122 r
For example, the defendant was enjoined in Austen v. Cave, C33/371, f. 493
(Ch. 1739), in Butterworth v. Robinson, (1801) 31 Eng. Rep. 817, and in Wilkins v. Aikin,
(1810) 34 Eng. Rep. 163. In addition, recent historical research by Tomás Gómez-
Arostegui shows that, although unreported, Tonson v. Baker, C9/371/41 (Ch. 1710), was
the first lawsuit filed under the Statute of Anne. See H. Tomás Gómez-Arostegui, The
Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, 25 BERKELEY
TECH. L.J. 1247 (2010). In that case, Tonson was able to secure an ex parte temporary
restraining order despite his acknowledgment that the defendant’s book was not identical
to his own; he merely argued that it was the “Same in Substance & Effect.” Id.
123
GODSON, supra note 51, at 215-16.
A man may fairly adopt part of the work of another; he may so make
use of another’s labours for the promotion of science, and the benefit
of the public: but having done so, the question will be—Was the
matter so taken fairly with that view, and without what may be
termed the animus furandi [intention to steal]?124
The requirement that abridgments be “real and fair” as

opposed to merely “colorably shortened” distinguished between
abridgments in general and a narrower subset of bona fide
abridgment. The very existence of this distinction expands
upon the narrow statutory language of the first copyright act.
This crucial development in copyright law predates Folsom v.
Marsh by at least 100 years.125
III. FOUR CONSTANTS OF FAIR USE
Abridgment was neither categorically allowed nor

prohibited in the premodern era of copyright. Instead, the
legality (or bona fide) of abridgment was usually determined by
a process not unlike the modern fair use enquiry. Although not
as systemized, the premodern abridgment cases demonstrate a
surprising continuity with modern fair use. Like their modern
counterparts, early abridgment cases treated the question of
whether a use was bona fide as a complex factual question that
resists bright-line rules and requires case-by-case analysis.126
Likewise, the early cases regarded the amount of the defendant’s
copying as a key, but not decisive, issue.127 Neither of these
observations is particularly unexpected. What is surprising is
the extent to which the modern fair use factors of market effect
and transformative use are present in these eighteenth-century
and early nineteenth-century decisions.128 As the remainder of
this article demonstrates, questions of substitution effects and
the degree of labor and authorial skill injected by the defendant
were central in premodern copyright cases.
A. Case-by-Case Analysis
The modern law of fair use is often assailed for its fact-
intensive, case-by-case, and consequently unpredictable
124
Id.
125
Compare Gyles v. Wilcox, (1741) 26 Eng. Rep. 489 (Ch.), with Folsom v.
Marsh, 9 F. Cas. 342, 345 (C.C.D. Mass. 1841) (No. 4901).
126
See infra Part III.A.
127
See infra Part III.B.
128
See infra Parts III.C-D.
nature.129 The U.S. Supreme Court’s admonition in Campbell v.

Acuff-Rose that application of fair use cannot “be simplified
with bright-line rules, for the statute, like the doctrine it
recognizes, calls for case-by-case analysis” appears to cement
this aspect of the doctrine.130 For good or ill, in this respect at
least, not much appears to have changed between 1828 and the
present. As Robert Maugham concedes,
It would, perhaps, be unreasonable to expect, that any full and
precise definition should have been made of the extent to which a
writer may lawfully quote or extract from the works of his
predecessors. The courts have generally confined themselves to the
decision of the mere point in litigation.131
Similarly, concerning the use of quotations, Maugham observes

that “[i]t is difficult to define the exact limits to which a
compiler is confined in his extracts or quotations from original
authors, or from abridgments or previous compilations. In each
case the peculiar circumstances attending it must be
ascertained and considered.”132 Like modern commentators,
Maugham was quick to point out that this case-by-case
development gave rise to incomplete, inconsistent, and
confusing legal doctrines. The dominance of case-by-case
analysis was not simply a product of the nascent stage of
doctrinal development. Even in cases where the judges
regarded the issues as fairly settled, they understood those
issues as highly fact-specific and resistant to rules of general
application.133 Premodern abridgment cases and early copyright
129
Even copyright minimalist Lawrence Lessig disparages fair use on this
ground, arguing that fair use is so uncertain that it is merely “the right to hire a
lawyer.” LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND
THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 187 (2004); see also
Michael W. Carroll, Fixing Fair Use, 85 N.C. L. REV. 1087, 1090 (2007).
130
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). Still, as
Pamela Samuelson argues, despite the necessity of case-by-case analysis, fair use law
is probably “more coherent and more predictable than many commentators have
perceived once one recognizes that fair use cases tend to fall into common patterns.”
Pamela Samuelson, Unbundling Fair Uses, 77 FORDHAM L. REV. 2537, 2542 (2009).
131
MAUGHAM, supra note 62, at 126; see also Dodsley v. Kinnersley, (1761) 27
Eng. Rep. 270 (Ch.) 271 (“No certain line can be drawn, to distinguish a fair
abridgment; but every case must depend on its own circumstances.”); Wilkins v. Aikin,
(1810) 34 Eng. Rep. 163 (Ch.) (Fair quotation is “in all cases very difficult to define.”).
The same sentiment is expressed by the U.S. Supreme Court in Campbell, 510 U.S. at
577, and in Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).
132
133
In the 1761 case Dodsley v. Kinnersley, Sir Thomas Clarke, the master of
the rolls, noted that “the subject matter of this suit has been so often before the Court
upon other occasions, that when a case of this kind comes to be litigated, little more is
treatises evince the importance of case-by-case analysis in

determining the bona fides of the defendant.
B. Amount Copied
A key element of the modern fair use doctrine is “the

amount and substantiality of the portion used [by the
defendant] in relation to the copyrighted work as a whole.”134
Not surprisingly, this factor also played a central role in fair
use decisions from almost the very beginning of modern
copyright. Consistent with modern doctrine, however, although
the extent of the defendant’s appropriation was evidently
pertinent to the ultimate infringement question, courts resisted
a precise statement on how much copying was too much. The
cases Dodsley v. Kinnersley in 1761, Roworth v. Wilkes in 1807,
and Wilkins v. Aikin in 1810 are illustrative.
Dodsley v. Kinnersley revisited the question of fair
abridgment in relation to magazines.135 London bookseller Robert
Dodsley, together with William Strahan and William Johnston,
had paid Samuel Johnson £75 for the first edition of the two-
volume Rasselas, The Prince of Abyssinia: A Tale.136 Relying on
the customs of the day, the defendant had reproduced parts of
the narrative in his Grand Magazine of Magazines. According to
the case report, the defendant produced evidence that it was
usual to print extracts of new books in magazines without the
author’s permission.137 The report also notes that this printing
was “often done at the request of the author, as being a means to
help the sale of the book.”138
Arguing for the opposite conclusion, the plaintiffs noted
that the defendant had abstracted an excessive amount of the
necessary than to see whether it is adapted to the rules and principles before laid
down.” 27 Eng. Rep. at 271.
134
17 U.S.C. § 107(3) (2006). This inquiry can be traced to Justice Story’s
original formulation of the fair use doctrine in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.
Mass. 1841) (No. 4901). In that case, Justice Story was concerned with protecting the
“chief value of the original work” against the extraction of its “essential parts” through
the mere “facile use of scissors” or its intellectual equivalent. Id. at 345.
135
(1761) 27 Eng. Rep. 270 (Ch.) 271. Ironically, the author of the work
allegedly copied in Dodsley was none other than Samuel Johnson—the same Samuel
Johnson whose resounding defense of abridgment is noted supra Part II.A. See supra
note 74 and accompanying text.
136
Nancy A. Mace, What Was Johnson Paid for Rasselas?, 91 MODERN PHILOLOGY
455, 458 (1994) (clarifying a discrepancy between Boswell’s account and the evidence that
the booksellers presented at trial to establish their ownership of the copyright).
137
Dodsley, 27 Eng. Rep. 270, 270.
138
Id.
original work and had “print[ed] only the narrative, . . . leaving

out all the moral and useful reflections.”139 The defendant’s
reproduction of the Rasselas narrative, the plaintiffs argued,
“was done in such a way” that it did not “recommend the book,
but quite the contrary.”140 The plaintiffs relied on depositions
from three other influential London booksellers, Jacob Tonson,
Andrew Millar, and John Rivington.141 Unsurprisingly, these
witnesses unanimously agreed that Grand Magazine had
extracted such large portions of Rasselas that readers would no
longer be interested in purchasing the actual book.142 But
Ambler’s report of the decision notes some ambiguity about
exactly how much of Johnson’s book had been reprinted.143 The
report describes the plaintiffs’ witnesses as “conjectur[ing], that
about two-thirds of the book was printed in the Magazine.”144 As
the report also notes, however, although this estimate may
have been true by the time the case was heard, only a small
amount—“not above one-tenth”—had actually made its way
into the magazine when the plaintiffs commenced the action.145
The master of the rolls had little to say on the amount copied
by the defendant, other than to crisply note that “[i]t does not
appear that one-tenth part of the first volume has been
abstracted.”146 The court considered this amount patently
insufficient to sustain an infringement claim.147
The 1807 case Roworth v. Wilkes concerned the
abridgment of a fencing treatise titled The Art of Defence on
Foot with the Broadsword, a multivolume compendium that
styled itself as a “universal dictionary of arts and sciences and
literature.”148 The Encyclopedia Londinensis had quite brazenly
copied seventy-five pages of the 118-page fencing text in its
139
Id. at 271.
140
Id.
141
See Mace, supra note 136, at 457.
142
Id.
143
Dodsley, 27 Eng. Rep. 270.
144
Id.
145
The original bill of complaint was filed on May 21, 1759, and the
defendant’s answer is dated September 12, 1759. It was not until June 15, 1761,
however, that the case was finally heard. See Mace, supra note 136, at 457. The
plaintiffs’ witness was a fellow London bookseller, Jacob Tonson, who was also the
plaintiff in Tonson v. Walker, (1752) 36 Eng. Rep. 1017 (Ch.).
146
147
Id. Similarly, in Gyles v. Wilcox, the abridgment in question contained
thirty-five sheets, whereas the original was 275 sheets. This was ultimately held to be
a fair abridgment. See Tonson, 36 Eng. Rep. 1017 (Ch.) 1020 (discussing Gyles v.
Wilcox, (1741) 26 Eng. Rep. 489 (Ch.)).
148
(1807) 170 Eng. Rep. 889 (K.B.).
own volume on the same topic—a practice that was apparently

not unusual.149 Lord Ellenborough’s brief opinion reduces the
question of infringement to whether the defendant’s
publication would serve as a substitute for the original.150
According to the lord chancellor, the determinative factor in the
substitution inquiry was whether the later work communicates
the same knowledge as the original.151 Lord Ellenborough did
not accept the defendant’s argument that “in a dictionary of all
arts and sciences the compiler was justified in taking larger
extracts than in another work of the same description.”152 On
the contrary, he reasoned, although a compilation such as the
Encyclopedia Londinensis might differ from a specific treatise
published by itself, “[T]here must be certain limits fixed to its
transcripts; it must not be allowed to sweep up all modern
works . . . or an Encyclopoedia would be a recipe for completely
breaking down literary property.”153 Lord Ellenborough held in
favor of the plaintiff on both the text and the drawings.154
Whereas Dodsley tends to illustrate that copying a mere
one-tenth of a work was considered too insignificant to sustain
a charge of copyright piracy, Roworth gives an example of an
amount of copying—just under two-thirds—considered too
much. In contrast, the next case considered, Wilkins v. Aikin,
illustrates a more context-dependent quantitative
investigation. Wilkins was the author of a single volume
entitled The Antiquities of Magna Græcia, which he had
written based on his travels to Sicily and Greece in 1807.155 The
defendant freely acknowledged quoting sections of Wilkins’s
book in his own twenty-three-page Essay on the Doric Order of
Architecture.156 He argued, however, that he had done so in
accordance with the norms of the Society of Professors of
Architecture (of which he was a member) and without any
149
Id. In his discussion of compilations in general, Godson notes that the
authors of encyclopedias “have generally taken from the works of others with
unsparing hands.” GODSON, supra note 51, at 233.
150
Roworth, 170 Eng. Rep. at 890.
151
Id.
152
Id.
153
Id. He also noted that “[h]ere 75 pages have been transcribed out of 118,
and that which the plaintiff sold for half-a-guinea may be bought of the defendant for
eightpence.” Id. at 889-90.
154
Id. at 891. The jury found separate damages for the letterpress and the
prints—£70 for the former and £30 for the latter. Id. at 891.
155
Wilkins v. Aikin, (1810) 34 Eng. Rep. 163 (Ch.).
156
Id.
intention of injuring the plaintiff’s work.157 In Lord Chancellor

Eldon’s decision, he recognized that the copyright owner’s
rights extended to both partial and complete reproduction but
noted that fair quotation must still be allowed. The lord
chancellor accordingly declared, “There is no doubt, that a man
cannot under the pretence of quotation, publish either the
whole or part of another’s work; though he may use, what it is
in all cases very difficult to define, fair quotation.”158
Differentiating between fair quotation and its pretense
required first-hand observation of both the plaintiff’s and the
defendant’s works. After what appears to have been a fairly
close review of the two works, the lord chancellor noted that
the defendant had acknowledged a considerable proportion
taken from the plaintiff’s work but had also failed to
acknowledge some.159 Determining whether the defendant had
crossed the line between fairness and pretense was not a
strictly arithmetical exercise for the court.
Analogizing to an earlier case involving a road atlas,160
the lord chancellor reasoned that publishing an individual map
to illustrate the history of the maps of a particular region
would be fair “if it was a fair history of maps of the county,” but
he cautioned that “if a jury could perceive the object to make a
profit by publishing the map of another man, that would
require a different consideration. The slightest circumstances
therefore in these cases make the most important
distinction.”161 It seems, then, that the court would have
countenanced the wholesale replication of a copyrighted map if
it were merely an illustration of a broader history of map
making and did not substitute for the original publication of
the map. Time has somewhat obscured the facts of Wilkins.
Counsel for the defendant argued that he had, “by no means,”
extracted “the most valuable or material” aspects of the
plaintiff’s work and that, in any event, any such abridgment
and quotation did not exceed three pages.162
157
Id.
158
Id.
159
Id.
160
The cases referred to are Carnan v. Bowles, (1786) 29 Eng. Rep. 45 (Ch.);
Cary v. Faden, (1799) 31 Eng. Rep. 453 (Ch.); and Cary v. Longman, (1801) 102 Eng.
Rep. 138 (K.B.).
161
Wilkins, 34 Eng. Rep. 163.
162
Id. But rather than enjoining the defendant’s publication, the court issued
an injunction permitting the work to be sold subject to the defendant undertaking to
account according to the result of the action.
There is an interesting parallel between this

nineteenth-century thought experiment and recent
controversial cases, such as Bill Graham Archives v. Dorling
Kindersley Ltd.163 In Bill Graham Archives, the Court of
Appeals for the Second Circuit held that the use of historic
concert promotional posters for the Grateful Dead in a rock
biography was “a purpose separate and distinct from the
original artistic and promotional purpose for which the images
were created”; thus, even total copying did not necessarily
weigh against fair use.164 Likewise, in two contemporary cases
involving visual search engines, Perfect 10, Inc. v. Amazon.com,
Inc.165 and Kelly v. Arriba Soft Corp.,166 the Court of Appeals for
the Ninth Circuit held that reproducing images on a smaller
scale as part of a visual search engine was fair use.167 In
reaching this decision, the court reasoned that using these
works as pointing devices did not substitute for the expressive
value of the authors’ original expression.168
Godson’s treatise indicates another way that the
amount of the defendant’s copying was understood
contextually. Godson notes that if
the work complained of is in substance a copy, then it is not
necessary to shew the intention to pirate; for the greater part of the
matter of the book having been purloined, the intention is apparent,
and other proof is superfluous. A piracy has undoubtedly been
committed. But if only a small portion of the work is quoted, then it
becomes necessary to prove that it was done animo furandi
[intention to steal]; with the intention of depriving the author of his
just reward, by giving his work to the public in cheaper form.169
Godson suggests here that intent to pirate can be presumed

from a significant amount of copying and that, where less is
copied, the defendant’s intent must be investigated more
thoroughly. It is also noteworthy that the animo furandi (or
intention to steal) Godson identifies is not an intention to free
163
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609-10 (2d
Cir. 2006).
164
Id. at 613.
165
487 F.3d 701, 721 (9th Cir. 2007), aff’d in part on reh’g, 508 F.3d 1146 (9th
Cir. 2007).
166
336 F.3d 811 (9th Cir. 2003).
167
Perfect 10, 487 F.3d at 721; Kelly, 336 F.3d at 822. For a detailed
discussion of Perfect 10, Inc. v. Amazon.com, Inc., and Kelly v. Arriba Soft Corp. as
illustrations of the interaction between copyright law and copy-reliant technology, see
Matthew Sag, Copyright and Copy-Reliant Technology, 103 NW. U. L. REV. 1607 (2009).
168
See supra note 167.
169
GODSON, supra note 51, at 216-17.
ride—which Godson does not condemn—but rather the

intention to interfere with the author’s market-based rewards.
On first impression, we could infer from Dodsley and
Roworth that an abstraction of a mere one-tenth of a larger
work was considered too little to amount to infringement170 and
that an appropriation of two-thirds was too much to escape the
charge of piracy.171 But like their modern counterparts, these
cases should not be read as setting any immutable numerical
thresholds. While it is clear that the extent of the defendant’s
appropriation was an important consideration in copyright
cases of this era, it is also apparent from Wilkins v. Aikin that
the amount of tolerable copying varied according to both the
purpose of the defendant’s use and that use’s effect on the
copyright owner.172 This observation leads naturally into the
next consideration: market effect.
C. Market Effect
Courts in the United States are required by statute to

consider “the effect of the use upon the potential market for or
value of the copyrighted work” in any fair use determination.173
Judges and commentators enlightened by the law-and-
economics movement are naturally drawn to describe the fair
use doctrine in the language of economics.174 As Judge Posner
explains in Ty, Inc. v. Publications International,175 the
difference between fair use and infringement can often be
reduced to the difference between complementary and
170
Dodsley v. Kinnersley, (1761) 27 Eng. Rep. 270 (Ch.).
171
Roworth v. Wilkes, (1807) 170 Eng. Rep. 889 (K.B.). For another case of
excessive copying, see Macklin v. Richardson, (1770) 27 Eng. Rep. 451 (Ch.).
172
As Lord Chancellor Cottenham noted in Bramwell v. Halcomb,
When it comes to a question of quantity, it must be very vague. One writer

might take all the vital part of another’s book, though it might be but a small
proportion of the book in quantity. It is not only quantity but value that is
always looked to. It is useless to refer to any particular cases as to quantity.
Bramwell v. Halcomb, (1836) 40 Eng. Rep. 1110 (Ch.) 1112. For a summary of the
modern fair use doctrine on this point, see Sag, supra note 167.
173
17 U.S.C. § 107(41) (2006).
174
See, e.g., Wendy J. Gordon, Fair Use as Market Failure: A Structural and
Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM. L. REV. 1600
(1982); William M. Landes, Copyright, Borrowed Images, and Appropriation Art: An
Economic Approach, 9 GEO. MASON L. REV. 1 (2000). Judge Posner notes that “economic
terminology . . . has become orthodox in fair-use case law.” Ty, Inc. v. Publ’ns Int’l,
Ltd., 292 F.3d 512, 517 (7th Cir. 2002).
175
292 F.3d 512 (7th Cir. 2002).
substitutive use.176 For example, a parody does not substitute

for its target;177 a political attack advertisement does not
substitute for a televised debate;178 and a search engine is no
substitute for the websites it indexes.179 While this focus on
market substitution is unremarkable in the modern context, it
is more surprising to find it so pervasively ingrained in the
discourse of late eighteenth- and early nineteenth-century
copyright cases. Writing in 1828, Maugham commented,
“According to some authorities, . . . [bona fide extracts] must
not be so extensive as to injure the sale of the original work,
even though made with no intention to invade the previous
author. . . .”180 In another passage, Maugham explains,
Yet reasonable bounds must be set to the extent of transcripts. If an
article in a general compilation of literature and science copies so
much of a book, the copyright of which is vested in another person,
as to serve as a substitute for it, though there may have been no
intention to pirate it, or injure its sale,—this is a violation of literary
property for which an action will lie to recover damages.181
Understanding exactly what Maugham meant by “substitute”

and the term’s broader significance in differentiating bona fide
abridgments from infringing ones requires some unpacking.
Both passages stress that the absence of intention to invade
the copyright owner’s rights was not considered dispositive; the
key concern was apparently substitution as determined
through market displacement. Although Godson adopts more
intention-based language, he also describes an unfair
abridgment as “depriving the author of his just [market-based]
reward, by giving his work to the public in a cheaper form.”182
176
Id. at 517.
177
See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
178
See, e.g., Edward Lee, Warming up to User-Generated Content, U. ILL. L.
REV. 1459, 1529 (2008) (discussing a television network’s demands that two
presidential candidates remove copyrighted footage of a presidential debate from their
campaign videos and the prospects of a fair use defense); see also MasterCard Int’l, Inc.
v. Nader 2000 Primary Comm., Inc., No. 00 Civ. 6068 (GBD), 2004 WL 434404
(S.D.N.Y. Mar. 8, 2004).
179
See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).
180
MAUGHAM, supra note 62.
181
Id. at 132-33 (emphasis added); see also GODSON, supra note 51, at 247
(noting that “no one is allowed, under the pretence of quoting, to publish either the
whole or the principle part of another man’s composition; and therefore a review must
not serve as a substitute for the book reviewed”) (citations omitted).
182
GODSON supra note 51, at 216-17.
Maugham’s treatise contains a revealing section on the

relevance of injury to the copyright owner.183 He begins by
observing the existence of some confusion:
The grounds of the decisions on this important subject, as reported
in the law books, are not altogether consistent in principle. In some
of them, it appears that the piracy occasioning, or obviously tending
to, a depreciation in the value of the original work, is a fact on which
much reliance has been placed in determining the question. In
others, this circumstance has been altogether disregarded.184
Other passages in Maugham’s treatise make it clear that what

he means by “depreciation in value” is an injury to the sales of
the original work. Making the point differently, Maugham
notes that, in some cases, a bona fide abridgment is considered
a new work and thus allowed even if it injures sales of the
original: “On the one hand it has been held, that a fair and
bona fide abridgment of any book, is considered a new work;
and however it may injure the sale of the original, yet it is not
deemed a piracy or violation of the author’s copyright.”185
Maugham cites Gyles v. Wilcox for this proposition.186 In the
relevant paragraph of Gyles, Lord Hardwicke made his famous
statement that a “real and fair abridgment” should not be
restrained by copyright.187 In the same passage, Hardwicke
equated a fair abridgment with new works of authorship
because “the invention, learning, and judgment of the author is
shewn in them.”188 Notably, Hardwicke acknowledged that even
a fair abridgment may injure the textual integrity of the
original author’s work: it may be “prejudicial” to the author “by
mistaking and curtailing the sense of the author.”189
Wilkins v. Aikin also held that a fair and bona fide
abridgment was noninfringing, despite prejudice to the
copyright holder.190 As discussed previously, this case concerned
a claim of infringement by William Wilkins in his book The
Antiquities of Magna Græcia against Aikin’s An Essay on the
Doric Order of Architecture.191 While the facts of Wilkins have
183
184
Id. at 130.
185
Id.
186
Id.
187
Gyles v. Wilcox, (1741) 26 Eng. Rep. 489 (Ch); see also supra note 87 and
accompanying text.
188
Id.
189
Id.
190
Wilkins v. Aikin, (1810) 34 Eng. Rep. 163 (Ch.).
191
See supra text accompanying notes 155-62.
already been related, it is interesting to reflect on Lord

Chancellor Eldon’s chain of reasoning in this case. His lordship
began with the legitimacy of defendant’s use of the plaintiff’s
publication: “The question upon the whole is, whether this is a
legitimate use of the Plaintiff’s publication in the fair exercise
of a mental operation, deserving the character of an original
work.” The lord chancellor saw the question of legitimacy and
“the fair exercise of mental operation” as equivalent; if the use
is deemed legitimate—presumably because of the intellectual
labor added by the defendant—the work is regarded as a new
work, not an infringing one. The exculpatory effect of the “fair
exercise of mental operation” was not contingent on a lack of
harm to the original copyright holder. Quite the contrary, Lord
Chancellor Eldon explained: “The effect, I have no doubt, is
prejudicial[;] it does not follow, that therefore there is a breach
of the legal right.”192
In contrast to Gyles v. Wilcox, Maugham notes that, in
Roworth v. Wilkes (the case of the Encyclopedia Londinensis),
the court held for the plaintiff precisely because of the risk that
the encyclopedia entry on fencing would displace the plaintiff’s
more expensive treatise on the subject.193 The key determinant
of infringement, according to Lord Ellenborough, was whether
the defendant’s publication was “in substance a copy” and
would thus serve as a substitute for the plaintiff’s.194 In this
sense, Lord Ellenborough appears to have assessed
substitution at a functional level: his lordship was concerned
with whether “so much be extracted that it communicates the
same knowledge with the original work.”195 As noted above,
Lord Ellenborough held in favor of the plaintiff on both the text
and the drawings.196
Maugham resolves the apparent tension between cases
that take account of injury to the plaintiff and those that do not
by observing “a clear distinction in the nature of these two
192
Wilkins, 34 Eng. Rep. at 165. Lord Chancellor Eldon continued the interim
injunction and directed that an action be brought immediately. Wilkins, 34 Eng. Rep. 163.
But no action appears to have been brought. See ALEXANDER, supra note 49, at 184.
193
Roworth v. Wilkes, (1807) 170 Eng. Rep. 889 (K.B.). See MAUGHAM, supra
note 62, at 130 (“On the other hand, in the case of the Encyclopedia Londinensis, in which
a large part of a treatise on fencing was transcribed, though there might have been no
intention to injure its sale, yet as it might serve as a substitute for the original work, and
was sold at a much lower price, it was held actionable, and damages were recovered.”).
194
Roworth v. Wilkes, (1807) 170 Eng. Rep. 889 (K.B.).
195
Id.
196
Id.
cases, although the fact of depreciation might be in each the

same.”197 In Maugham’s view, cases strongly influenced by the
prejudice to the copyright owner were distinguishable from
those that were not because the latter involved the defendant’s
application of labor and judgment, whereas the former were
merely instances of “wholesale compilation.”198 Maugham sees
Rowoth, for example, as a case “in which seventy-five pages
were successively transcribed, without addition or alteration,
and on which consequently no skill or learning had been
bestowed.”199 He concludes that “the exercise of [skill or
learning] may be considered . . . the true criterion by which to
determine the bona fide character of the abridgment or
compilation.”200 Modern fair use case law makes a similar
distinction between different kinds of market effect.201
Despite the continuity and congruity between the
premodern and contemporary understanding of market effect,
the parallels should not be overstated. The premodern
abridgment cases clearly part company with their modern
counterparts in their narrow conception of derivative rights.
Under modern copyright law, the author’s exclusive rights
include the right “to prepare derivative works based upon the
copyrighted work.”202 The modern copyright statute defines
derivatives broadly as “a work based upon one or more
preexisting works,” and the statutory definition also expressly
includes abridgments and translations.203 But case law indicates
that a work is not derivative unless it has substantially copied
from a prior work.204
197
198
Id.
199
Id.
200
Id.
201
For example, in Campbell, the Supreme Court explained that
when a lethal parody, like a scathing theater review, kills demand for the
original, it does not produce a harm cognizable under the Copyright Act.
Because parody may quite legitimately aim at garroting the original,
destroying it commercially as well as artistically, the role of the courts is to
distinguish between biting criticism that merely suppresses demand and
copyright infringement, which usurps it.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591-92 (1994) (quoting Fisher v.
Dees, 794 F.2d 432, 438 (9th Cir. 1986); KAPLAN, supra note 36, at 69) (internal
quotation marks and alterations omitted).
202
17 U.S.C. § 106(2) (2006).
203
Id. § 101 (defining “derivative work”).
204
Caffey v. Cook, 409 F. Supp. 2d 484, 496 (S.D.N.Y. 2006); 1-3 DAVID
NIMMER, NIMMER ON COPYRIGHT § 3.01 (2010). See generally Naomi Abe Voegtli,
Dodsley v. Kinnersley illustrates the narrow conception

of the copyright owner’s rights regarding derivative works—the
prevailing view in the premodern era. In Dodsley, the plaintiffs
argued that Grand Magazine’s publication of Samuel Johnson’s
novel Rasselas was particularly harmful because “it was done
in such a way, as not to recommend the book, but quite the
contrary; by printing only the narrative, and leaving out all the
moral and useful reflections.”205 In this plea to protect both their
literary and commercial interests, the plaintiffs portrayed the
abridgment in Grand Magazine as an inferior version of the
original work, bleached of intellectualism and literary merit.206
But the master of the rolls, Sir Thomas Clarke, was not
sympathetic to arguments based on either literary or
commercial integrity. He dismissed the notion that the
abridgment could harm the work’s reputation, stating that “it
tends to the advantage of the author, if the composition is good;
if it is not, it cannot be libeled.”207
The Dodsley court also appeared to accept the
defendant’s argument that the abridgment of books in
magazines actually inured to the benefit of copyright owners as
a form of free advertising.208 The master of the rolls noted that
“[t]he nature of annual registers, magazines, [etc.], is to give an
abstract or analysis of authors” and that the plaintiffs
themselves had benefited from this freedom in the past in
relation to their own periodicals.209
The master warned that to find a subsequent
abridgment infringing would require holding—at great
prejudice to the plaintiffs—that every abridgment was an
infringement.210 The Dodsley decision in favor of the defendant
Rethinking Derivative Rights, 63 BROOK. L. REV. 1213 (1997) (reviewing the history of
the derivative right in the United States).
205
Dodsley v. Kinnersley, (1761) 27 Eng. Rep. 270 (Ch.).
206
On the defendant’s side, it could be argued that they had merely
“retrenched the unnecessary and uninteresting” parts of the text “which rather deaden
the narration.” This was Apsley’s conclusion in Strahan v. Newbery, (1775) 98 Eng.
Rep. 913 (Ch.).
207
Dodsley, 27 Eng. Rep. 270; see also GODSON, supra note 51, at 238 (“In
general, an abridgment tends to the advantage of the author, if the composition be
good; and may serve the end of an advertisement. The inquiry whether the work is
prejudiced by the manner of making the abridgment cannot be entertained.”).
208
209
The court did not regard these trade customs as binding, but it noted that
it ought to “take notice of the springs flowing from trade” and consider their
consequences. Id.
210
Id. The exact words of the master of the rolls were
was not, however, based on a broadly construed right of

abridgment and reuse. Instead, the primary ground for the
decision was the lack of market prejudice. According to the
master, the plaintiffs suffered no prejudice because they had
already published an abstract of the book in their own
periodical, the London Chronicle.211 Accordingly, the plaintiffs’
bill was dismissed.212 Implicit in the master’s conclusion is an
understanding that unauthorized abridgments are only
impermissible to the extent that they substitute for the
copyright owner’s original work. What is missing here, from a
modern perspective, is any consideration of how an unlicensed
abridgment may substitute for the plaintiff’s own derivative
work. Unauthorized derivative works were enjoined from time
to time in the premodern era, but seemingly only when they
directly competed with the copyright owner’s original work.
There is no evidence in these early cases that courts considered
prohibiting unlicensed derivatives on the theory that they
would compete with the plaintiff’s own derivative.
The premodern copyright cases touching on market
effect are thus both familiar and strange. The essential factor—
the effect of the defendant’s copying on the plaintiff’s market—
is familiar to the modern copyright scholar, but the decidedly
narrow conception of that market is less so.213
D. Transformative Use
In modern fair use jurisprudence, a use may be

considered transformative if it incorporates an existing work in
a way that adds something new—by casting a critical eye on
the original, by incorporating the original into an entirely
different sort of work, or by processing the original as an
intermediate step in the production of a noninfringing end
product (such as the automated copying of websites to
[w]hat I materially rely upon is, that it could not tend to prejudice the
plaintiffs, when they had before published an abstract of the work in the
London Chronicle. If I was to determine this to be elusory, I must hold every
abridgment to be so; and that, from its extensive consequence, would
prejudice the plaintiffs.
Id.
211
Id.
212
Id.
213
A similar shift on market conception is evident in trademark law. See
generally Mark P. McKenna, The Normative Foundations of Trademark Law, 82
NOTRE DAME L. REV. 1839 (2007).
construct a search-engine index).214 If the early copyright cases

and treatises reviewed in this article are any guide, these
transformative uses would have also been regarded as
noninfringing in the premodern era—but perhaps for slightly
different reasons.
The essence of the premodern cases is synthesized by
Maugham’s assessment that the application of skill or labor
should “be considered as the true criterion by which to
determine the bona fide character of the abridgment or
compilation.”215 There is an essential difference between fair use
in the premodern cases and the approach that has emerged in
the United States since the Supreme Court’s Campbell
decision. The latter focuses on the legitimacy of appropriative
uses that result in transformative output, whereas the early
copyright cases focus more on inputs. Nonetheless, the distance
between the modern approach and the views of the early
English copyright courts may be narrower than an input-
output dichotomy suggests.
There are other passages in Maugham’s treatise that
can be read as equivalent to the modern parsing of the
transformative-use concept. For example, Maugham says,
Where labor, judgment, and learning, however, have been applied in
adapting existing works into a new method, and the composition has
been evidently made with a fair and honest intention to produce a
new and improved work, it seems that the law will justify the
publication, although the abridgment or compilation should injure
the sale of the former works.216
It seems unlikely that a composition “evidently made with a

fair and honest intention to produce a new and improved work”
could fail to satisfy the Supreme Court’s standard of adding
“something new, with a further purpose or different character,
altering the first with new expression, meaning, or message.”217
The early copyright cases stressed the importance of the
defendant’s labor and the link between the newness of an
abridgment and its social utility. As already noted, in Gyles v
Wilcox, Lord Hardwicke explained that a “real and fair
abridgment . . . may with great propriety be called a new book,
because . . . the invention, learning, and judgment of the author
214
This is not intended as an exhaustive statement of the boundaries of
transformative use.
215
216
Id. at 126.
217
Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994).
[are] shewn in it, and in many cases abridgments are extremely

useful.”218 In addition, there are indications that the exculpatory
labor the courts were seeking in order to find fair abridgment
was authorial in nature and not merely industrious. Godson,
for example, argued that a “real and fair abridgment” must not
be merely colorably shortened (i.e., by omitting some parts and
merely transposing others) and that “[t]here must, at least, be
invention, learning, and judgment shewn by the author of [the
abridgment].”219 The application of invention, learning, and
judgment sounds more like authorship than mere industry and
mechanical application. This point is illustrated in the 1775
case Strahan v. Newbery, which explicitly recognized
abridgment as an act of “understanding.”220 We cannot dismiss
the possibility that the court’s primary impetus for allowing the
abridgment was the desire to see an account of Dr.
Hawkesworth’s Voyages made more broadly available. But it is
significant nonetheless that the court at least claimed to have
considered the defendant’s editorial contribution and that it
chose to frame its decision in those terms. According to the
report, both Lord Chancellor Apsley and Justice Blackstone
agreed that “an abridgment, where the understanding is
employed . . . is not an act of plagiarism upon the original work,
nor against any property of the author in it, but an allowable
and meritorious work.”221
In 1810, Wilkins v. Aikin framed the issues similarly. In
determining whether the defendant’s Essay on the Doric Order of
Architecture had impermissibly copied the plaintiff’s Antiquities of
Magna Græcia, the court delineated the question in terms of the
defendant’s mental and authorial contribution: “[W]hether this is
a legitimate use of the plaintiff’s publication in the fair exercise of
a mental operation, deserving the character of an original work.”222
Admittedly, in both of these cases, it is hard to be sure whether
the identification of mental labor producing a “new” work should
be treated as an instrumental finding or merely as a restatement
of the court’s conclusion.223
218
Gyles v. Wilcox, (1741) 26 Eng. Rep. 489 (Ch.) 490 (emphasis added); see
also MAUGHAM, supra note 62, at 129.
219
220
Strahan v. Newbery, (1775) 98 Eng. Rep. 913 (Ch.).
221
Id.
222
Wilkins v. Aikin, (1810) 34 Eng. Rep. 163 (Ch.) 165.
223
This problem applies with equal force to modern fair use cases. See Sag,
supra note 41.
The importance of the defendant’s addition of authorial

value is perhaps most apparent in Burnett v. Chetwood.224 In
this 1721 case, counsel for the defendant argued that
the translator may be said to be the author, in as much as some skill
in language is requisite thereto, and not barely a mechanic art, as in
the case of reprinting in the same language; that the translator
dresses it up and clothes the sense in his own style and
expressions . . . and therefore should rather seem to be within the
encouragement than the prohibition of the act.225
The defendant in Burnett clearly rested his noninfringement

claim on a claim to equal status as an author. The lord
chancellor agreed, noting that “a translation might not be the
same with the reprinting the original, on account that the
translator has bestowed his care and pains upon it, and so not
within the prohibition of the act.”226
CONCLUSION
Some periods of copyright history are better known than

others. The dismantling of the Stationer Guild’s printing
monopoly at the end of the seventeenth century, the beginning
of statutory copyright with the Statute of Anne in 1710, and
the death knell of perpetual common-law copyright in 1774
after Donaldson v. Becket are each deservedly well studied.227
The latter two events are particularly well rehearsed in
American copyright lore. But most American scholarship, after
having addressed the topics that the Founders may have
contemplated in the late 1770s as they drafted the U.S.
Constitution and the new nation’s first copyright act, proceeds
directly to twentieth-century technological and social
developments.228 Even those U.S. scholars who do take a
backward glance at the nineteenth century tend to do so from a
strictly American point of view.229 Consequently, the
224
(1721) 35 Eng. Rep. 1008 (Ch.).
225
Id. at 1009.
226
Id.
227
Classic works encompassing these events include KAPLAN, supra note 36;
L. RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE (1968); HARRY H. RANSOM,
THE FIRST COPYRIGHT STATUTE (1956); and MARK ROSE, AUTHORS AND OWNERS: THE
INVENTION OF COPYRIGHT (1993).
228
See, e.g., Joyce & Patterson, supra note 45.
229
An important exception is WILLIAM F. PATRY, PATRY ON FAIR USE (2009).
For a rare comparative survey, see Jane C. Ginsburg, A Tale of Two Copyrights:
Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991 (1990).
development of English copyright law from 1774 to the mid-

nineteenth century has been largely neglected in this country.
By examining the prehistory of fair use, this article
sheds light on the origins of the fair use doctrine in the United
States. The complete history of the fair use doctrine begins
with over a century of copyright litigation in the English
courts. This broader view of copyright history shows that
Justice Story’s 1841 decision in Folsom v. Marsh was not the
origin of the fair use doctrine. As Part II explains, a review of
the prehistory of fair use also shows that contemporary
copyright skeptics may have overstated the narrowness of
premodern copyright.
More significantly, the study of this prehistory
demonstrates the gradual coevolution of copyright and fair use.
Plaintiffs in copyright lawsuits are quick to characterize the
fair use doctrine as a narrow exception that should be
cautiously applied.230 In Sony Corp. v. Universal City Studios,
Justice Blackmun characterized the fair use doctrine as “a form
of subsidy” at the expense of authors that permits limited use
of a work “for the public good.”231 A number of scholars have
embraced this conception. Jane Ginsburg, for example, has
emphasized the function of fair use as the “redistribution” of
value from copyright owners to preferred classes of users.232
This view of fair use sees copyright as the presumptive right of
authors and the exceptions to that right as things to be either
confined to the truly deserving or eliminated altogether. But
the suggestion that fair use should be seen as the exception to
the norm of total copyright owner control is historically
unfounded. As the prehistory of fair use makes plain, copyright
owners’ rights have been subject to and defined by the public’s
fair use rights since the beginnings of statutory copyright.
230
See, e.g., Notice of Motion for a Preliminary Injunction, Warner Bros.
Entm’t v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008) (No. 07 Civ. 9667 (RPP)),
2007 U.S. Dist. Ct. Motions 79667.
231
Sony Corp. v. Universal City Studios, 464 U.S. 417, 477-78 (1984)
(Blackmun, J., dissenting).
232
Jane C. Ginsburg, Authors and Users in Copyright, 45 J. COPYRIGHT SOC’Y
U.S.A. 1, 15 (1997) (emphasizing the “redistribution” of value from copyright owners to
preferred classes of users); Jane C. Ginsburg, Copyright, Common Law, and Sui
Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV.
151, 169 (1997) (viewing fair use as a subsidy from copyright owner in favor of uses
with public benefits); see also Robert P. Merges, The End of Friction? Property Rights
and Contract in the “Newtonian” World of On-Line Commerce, 12 BERKELEY TECH. L.J.
115, 134-35 (1997).
Cumulatively, the cases reviewed in this article

demonstrate the gradual, if haphazard, development of the
body of law we have come to understand as fair use. Part III of
this article explored the substantial continuity between the fair
abridgment decisions of the premodern era and the fair use
doctrine in the United States today. Just as it does now, the
problem of fair use presented difficult line-drawing questions
in copyright’s premodern era. What is illuminating for the
modern copyright scholar is not so much where these lines
were drawn in specific cases, but rather the analytical tools
used to draw them. As Part III establishes, the criteria used to
evaluate claims of fair use in the premodern cases
demonstrates a surprising level of continuity with the modern
fair use doctrine. The key inquiries in fair abridgment cases in
the premodern era are quite similar to the fair use factors
enshrined in the Copyright Act of 1976. Nevertheless, although
the general questions that courts ask in fair use cases have
remained largely constant over the years, the answers have
changed markedly. No court today would entertain the notion
that an abridgment that includes no critical commentary and
merely retells the original work’s story is anything other than
an infringement.
Focusing on the continuity between fair use in the
premodern era and the doctrine today assists in reframing the
true significance of Folsom v. Marsh. As discussed in Part III,
analysis of substitution and market effects was a staple feature
of abridgment cases in the premodern era. Yet premodern
courts’ understanding of the relevant market’s constitution was
quite narrow by modern standards, even if they were sensitive
to market effects. As the contrast between Roworth v. Wilkes
and Dodsley v. Kinnersley illustrates, a copyright owner’s
petition to enjoin an unauthorized abridgment was likely to be
well received if the abridgment in question threatened to
substitute directly for the copyright owner’s original work.233
Still, courts did not accept that a copyright owner was harmed
by an abridgment that merely competed with his own
derivative work.
The premodern cases illustrate a half-formed notion of
the derivative right: unauthorized derivatives could be enjoined
to defend the market of the original work, but they did not
constitute a separate market unto themselves. This observation
233
See supra Part III.B.
brings the contribution of Justice Story’s 1841 decision in

Folsom v. Marsh into sharper focus. Folsom departs from the
earlier English cases in that it recognizes derivatives as
inherently valuable—not just something to be enjoined to
defend the original work against substitution.234 This subtle
shift is important because while the boundaries of a defensive
derivative right can be ascertained vis-à-vis the defendant’s
work on the plaintiff’s original market, the boundaries of an
offensive derivative right can only be determined in the context
of some other limiting principle.
This extension of the derivative right from defensive to
offensive may well have been inevitable. It seems likely that as
more and more derivatives were enjoined defensively, courts
and copyright owners began to see these derivatives as part of
the authors’ inherent rights in their creations. In other words,
once copyright owners were allowed to preclude derivatives to
prevent competition with their original works, they quickly
grew bold enough to assert an exclusive right in derivative
works for their own sake—a development that, for good or ill,
bridges the gap between premodern and modern copyright.
234
Just how far the pendulum had swung by the time of Folsom v. Marsh can
be seen in the staunch criticism that George Ticknor Curtis leveled at the
jurisprudence of the English courts in his 1847 treatise. Curtis’ rather extreme, almost
hyperbolic, position was that the copyright owner’s rights covered “the whole book and
every part of it . . . the style, or language, and expression; the learning, the facts, or the
narrative; the sentiment and ideas, as far as their identity can be traced; and the form,
arrangement and combination which the author has given to his materials.” GEORGE
TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT 273 (1847).

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Brooklyn Law Review

Volume 76 | Issue 4 Article 3

The Prehistory of Fair Use

Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr

The fair use doctrine is a central part of modern

commercial book-search engine, Google Books.4 In response to

beginning of the American fair use doctrine.11 As this article

it is incomplete. A rather narrow vision of literary property can

I. FOLSOM V. MARSH AND ITS QUESTIONABLE SIGNIFICANCE

Folsom v. Marsh concerned two different literary

a partnership of publishers that held the rights to Jared Sparks’

years later, in Strahan v. Newbery, Lord Chancellor Apsley

extracts of the essential parts, constituting the chief value of

century.38 Over the course of the nineteenth century, Bracha

II. ABRIDGMENTS, COMPILATIONS, AND OTHER FAIR USES IN

English copyright law in the premodern era offers

below, this view finds support in several factors—the text of

A. The Mechanical Conception of Premodern Copyright

The first place to look for a narrow conception of premodern

As this preamble indicates, the Act was drafted to address the

original grant contained in the Statute of Anne. This

idiosyncratic basis that the “strange notions” contained in the

In Blackstone’s view, the infringement of literary property

evidence indicates that Blackstone himself was amenable to

Arguably the best evidence of the conventional premodern

Abridgment, compilation, and reprinting played an important

eighteenth century was an appropriative affair in both

the Transactions of the Royal Society were generally read as

Consistent with the case law he reports, Maugham’s

B. A Broader Conception of Premodern Copyright

Having made the case for a narrow view of premodern

in the premodern period was in fact heavily qualified.

force.99 Thus, despite Johnson’s insistence that the legality of

repealed—and translated “all the Latin and French quotations”

Lord Hardwicke’s purposive reading of the statute led

Echoing Samuel Johnson—whose commentary Lord Hardwicke

Scavans, and several others that might be mentioned, would be

chronological, order.119 At trial, the plaintiff characterized these

In other words, neither the honest intention to create an

The requirement that abridgments be “real and fair” as

III. FOUR CONSTANTS OF FAIR USE

Abridgment was neither categorically allowed nor

nature.129 The U.S. Supreme Court’s admonition in Campbell v.

Similarly, concerning the use of quotations, Maugham observes

treatises evince the importance of case-by-case analysis in

A key element of the modern fair use doctrine is “the

original work and had “print[ed] only the narrative, . . . leaving

own volume on the same topic—a practice that was apparently

intention of injuring the plaintiff’s work.157 In Lord Chancellor

There is an interesting parallel between this

Godson suggests here that intent to pirate can be presumed

ride—which Godson does not condemn—but rather the

Courts in the United States are required by statute to

When it comes to a question of quantity, it must be very vague. One writer

substitutive use.176 For example, a parody does not substitute

Understanding exactly what Maugham meant by “substitute”

Maugham’s treatise contains a revealing section on the

Other passages in Maugham’s treatise make it clear that what

already been related, it is interesting to reflect on Lord